No. 26092-1-II.The Court of Appeals of Washington, Division Two.
Filed: November 16, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County, No. 95-2-00948-6, Hon. Terry K. McCluskey, May 23, 2000, Judgment or order under review.
Counsel for Appellant(s), Darlene A. Piper, Attorney At Law, 2497 Bethel Ave Ste 201, Port Orchard, WA 98366.
Counsel for Respondent(s), Clayton E. Longacre, Longacre Law Office, 569 Division St Ste F, Port Orchard, WA 98366-4600.
J. ROBIN HUNT, A.C.J.
Ward Muller appeals from an order granting attorney fees and costs to William and Rena Norgaard in their contract action against Muller. The Norgaards prevailed on only one of their causes of action; but the trial court refused to apply the proportionality rule and awarded the Norgaards all their fees as the substantially prevailing party in the litigation. We agree that the proportionality rule does not apply and that pre- and post-judgment interest do apply. Thus, we affirm.
Facts
On March 5, 1993, William Norgaard and Ward Muller signed an agreement authorizing Muller to survey and prepare a declaration to partition the Norgaards’ real property. The agreement estimated the cost at $1,450. The agreement also provided for attorney fees and costs of litigation.[1]
The Norgaards also orally agreed to pay an additional $800 to have Muller locate and stake the property lines. Muller billed the Norgaards incrementally as the work progressed. After paying $3,949 to Muller, the Norgaards refused to pay an additional $1,069.80 that Muller had billed them, claiming that he had over-and double-billed them. On April 18, 1994, Muller filed a materialmen’s lien on the Norgaards’ property. On December 14, 1994, he released the lien.
On April 4, 1995, the Norgaards sued Muller, listing nine causes of action: (1) breach of contract; (2) misrepresentation and fraud; (3) interference with a business relationship; (4) libel/slander; (5) emotional distress; (6) malicious prosecution; (7) malpractice; (8) breach of fiduciary duty; and (9) violation of the Consumer Protection Act. Muller counterclaimed for breach of contract.
After the Norgaards presented their case-in-chief, the trial court dismissed seven of their claims (claims 2-8) for insufficient evidence. A jury found that Muller breached the contract, that the Norgaards did not, and that Muller did not violate the Consumer Protection Act. The jury awarded the Norgaards $1,150.
In a post-verdict motion, the Norgaards asked for $18,763.20 in fees, $695.40 in costs, and $2,513 in interest. Muller opposed the motion, claiming that he had prevailed on eight of the nine claims and that the trial court should apportion fees and costs between the parties. After discussing Marassi v. Lau, 71 Wn. App. 912, 918, 859 P.2d 605 (1993), and Silverdale Hotel Assoc. v. Lomas Nettleton Co., 36 Wn. App. 762, 774-75, 677 P.2d 773 (1984), the trial court ruled:
7. In light of the above cases, the analysis turns on whether Plaintiff is suing on a single breach of contract with several damage theories or for multiple distinct and several breaches. In the case before the Court, as in Silverdale Hotel, Plaintiffs sued on one breach of contract theory — namely that Plaintiffs overpaid Defendants and Defendants refused to repay Plaintiffs. Plaintiffs sued on several theories seeking damages resulting from the contract dispute. Plaintiffs’ various claims . . . revolve around one common core of facts, namely Defendants’ refusal to repay Plaintiffs. Unlike Marassi where the purchasers sued on several distinct contract claims, including multiple breach claims combined with multiple damage theories, Plaintiffs here had one breach of contract claim with several damage theories resulting from one single breach. Thus, the apportionment approach is inappropriate and Plaintiffs are the prevailing party entitled to reasonable attorney fees under the contract as per RCW 4.84.030.
Clerk’s Papers at 314. The trial court then awarded the Norgaards the $1,150 verdict, pre- and post-judgment interest at an 18 percent rate, $14,000 in attorney fees, $722 in costs, and 12 percent interest on the attorney fees and costs. The trial court later denied Muller’s motion for reconsideration.
Analysis
Muller makes three claims on appeal. First, he argues that the trial court should have apportioned the attorney fees between the parties. Second, in the alternative, he argues that the trial court should have found that he was the substantially prevailing party and awarded fees and costs to him. And third, he argues that the trial court erred in awarding interest on the judgment.[2]
I. Apportionment
In a contract action, the prevailing party is entitled to recover reasonable attorney fees and costs if the contract provides for such an award. RCW 4.84.330.[3] The prevailing party is generally the one who receives an affirmative judgment in his favor. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997). If neither party wholly prevails, then the party who substantially prevails is the prevailing party,[4] and may recover reasonable attorney fees. Piepkorn v. Adams, 102 Wn. App. 673, 686, 10 P.3d 428 (2000). Here, the trial court ruled that the Norgaards substantially prevailed and refused Muller’s request that it apply the proportionality rule first set out in Marassi, 71 Wn. App. at 917-18. We agree.[5] The Marassis entered into a purchase and sale agreement for a lot in a housing development. The developer agreed to make improvements to the lot and common areas, to install utilities, to construct an access road, to install a security gate, and to excavate a building pad. The Marassis sued for breach of contract, negligence, fraudulent conveyance, and misrepresentation when inadequate drainage caused cracking and settling of their driveway and parking area and an outburst of water and mud in the north and south slopes of the lot. Marassi, 71 Wn. App. at 913. The Marassis complained that the developer failed to properly hydroseed the lot, failed to extend a water line, and caused delay damages. Marassi, 71 Wn. App. at 913-14. Additionally, they sought specific performance for various improvements they claimed the developers failed to provide. Marassi, 71 Wn. App. at 914.
The Marassis initially alleged 13 claims, voluntarily dismissed five before trial, settled one and a counterclaim, and litigated seven, asking for $88,450 in damages. Marassi, 71 Wn. App. at 914. Of the remaining seven, the Marassis prevailed on the north slope damage claim and one of the specific performance claims; the court dismissed the other five claims. Marassi, 71 Wn. App. at 914. In all, after offsetting a $15,000 award for the north slope against the settled claims, the Marassis had a net affirmative judgment of $153. The trial court awarded $12,285 in attorney fees and $118 in costs to the Marassis as the prevailing parties. Marassi, 71 Wn. App. at 914.
The appellate court reversed, reasoning that it would be unjust to treat the Marassis as the substantially prevailing party because they received an affirmative judgment on only two of several claims. Marassi, 71 Wn. App. at 916. The court acknowledged the difficulty in deciding which party substantially prevailed and fashioned a proportionality approach, which it deemed more appropriate `when the alleged contract breaches at issue consist of several distinct and severable claims.’ Marassi, 71 Wn. App. at 917.
The Marassi court also distinguished Silverdale Hotel, 36 Wn. App. at 774-75, which involved the breach of a construction loan agreement and suit for consequential damages. Silverdale Hotel, 36 Wn. App. at 765. The court explained that, although the Silverdale Hotel plaintiff failed to prove certain consequential damages from the contract breach, it did recover a large damages award. Marassi, 71 Wn. App. at 917. It further explained why Silverdale Hotel was not controlling:
The plaintiff [in Silverdale Hotel] was deemed the prevailing party even though it had not recovered its entire claim, the court noting that the defendant had not prevailed in the contract dispute. . . . [T]he plaintiff was suing on a single breach of contract with several damages theories; it did not seek recovery for multiple distinct and severable breaches, as did the Marassis.
Marassi, 71 Wn. App. at 917 (emphasis added). See also Hertz v. Riebe, 86 Wn. App. 102, 105, 936 P.2d 24 (1997) (neither party substantially prevailed because each party recovered on a substantial theory).
Here, Muller asserts that the court should have applied the proportionality rule because the Norgaards brought distinct and severable claims against him. He claims that the trial court erred in finding that all the `claims revolve around one common core of facts.’ Clerk’s Papers at 314. We disagree.
Here, the Norgaards alleged just one breach of contract. Their remaining claims derived from that alleged breach. The trial court dismissed seven of the Norgaards’ claims. Claim two, which alleged misrepresentation and fraud, was based on Muller’s over-and double-billing, the same facts claimed in the Norgaards’ breach-of-contract claim. Claims three through five challenged the materialmen’s lien that Muller filed after the Norgaards demanded recompense. Claim six, for malicious prosecution, pertained to Muller’s counterclaim under the contract. Claims seven and eight challenged Muller’s professionalism and breach of duty by his actions of over-and double-billing and then refusing to recompense the Norgaards. It is clear that all these claims were manifestations of Muller’s breach of contract. The trial court did not abuse its discretion in finding that the Norgaards did not assert multiple contract breaches and that all the claims arose from the same core set of facts.
As in Silverdale Hotel, the Norgaards were the substantially prevailing party. Unlike in Marassi, the Norgaards’ claims were not severable and distinct. Like the plaintiff in Silverdale Hotel, the Norgaards sued on a single breach of contract with several damages theories. The Norgaards prevailed on their single claim, but on only one of nine remedies stemming from that claim. See also Piepkorn, 102 Wn. App. 673 (property owners suing for both injunctive relief and damages but granted only injunctive relief were the substantially prevailing party). The trial court determined that the Norgaards substantially prevailed.
II. Substantially Prevailing Party
As noted above, the Norgaards substantially prevailed and thus Muller’s claim that he was the substantially prevailing party fails as well.
III. Interest
Muller argues next that the trial court erred in awarding pre- and post-verdict interest to the Norgaards because the amount they recovered was not a liquidated sum, nor was it ascertainable from some fixed standard in the contract. Flint v. Hart, 82 Wn. App. 209, 225, 917 P.2d 590 (1996).
They argue that the jury used its opinion and discretion in awarding the $1,150 amount, `entirely relied upon their opinions and discretion, after multiple compromises.’ Appellant’s Br. at 27.[6]
In its memorandum decision, the trial court ruled:
Prejudgment interest is favored in the law because it promotes justice and its purpose is to compensate a party for the loss of money to which he is entitled. Preier Refrigeration Eng’g. Co., 74 Wn.2d 25, 34, 442 P.2d 621 (1968); Universal/Land Constr. v. City of Spokane, 49 Wn. App. 634, 641, 745 P.2d 53 (1987). Paragraph twenty (20) of the contract at issue provides that ‘(i)n event of litigation, client agrees to pay to the Land Surveyor interest on all past due balance at a rate of 18% per annum.’ This provision operates bilaterally. Plaintiff is entitled to prejudgment interest in the amount of 18% from the date the balance owed by Defendant became due.
Clerk’s Papers at 310.
Prejudgment interest is allowable only when the amount claimed is liquidated or, if unliquidated, the claim is determinable by computation with reference to a fixed standard in a contract without reliance on opinion or discretion. Hansen v. Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662
(1986) (citing Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968)). A liquidated claim is one whose `exact amount is fixed and known.’ Prier, 74 Wn.2d at 32.
Because Muller has not provided us with a record of proceedings from the trial, we cannot properly evaluate the jury’s verdict. In our view, though, what Muller owed was not a matter of discretion with the jury. The jury looked at what the contract provided for, what Muller billed for, and what the Norgaards paid for; it then awarded the Norgaards the difference.
The contract provided that outstanding balances would carry an 18 percent interest rate. The trial court simply applied this amount to the outstanding balance. We find no error in its award of pre- and post-judgment interest.
IV. Attorney Fees On Appeal
The trial court properly awarded attorney fees and costs under the contract and thus the Norgaards are entitled to recover their attorney fees and costs on appeal upon their compliance with RAP 18.1. Puget Sound Mut. Sav. Bank v. Lillions, 50 Wn.2d 799, 807-08, 314 P.2d 935 (1957), cert. denied, 357 U.S. 926 (1958); Granite Equip. Leasing Corp. v. Hutton, 84 Wn.2d 320, 327-28, 525 P.2d 223 (1974).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, J., ARMSTRONG, C.J.
6. In the event that the client institutes a suit against the Land Surveyor because of any failure or alleged failure to perform, error, omission or negligence, and if such suit is not successfully prosecuted, or if it is dismissed, or if verdict is rendered for the Land Surveyor, client agrees to pay the Land Surveyor any and all costs of defence, including attorney’s fees, expert witness fees, and court costs and any and all other expenses of defense which may be needful, immediately following dismissal of the case or immediately upon judgment being rendered in behalf of the Land Surveyor.
7. Should litigation be necessary to enforce any term of the provision of this agreement, then all litigation and collection expenses, witness fees and court costs and attorney’s fees shall be paid to the prevailing party.
Clerk’s Papers at 222.
In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney’s fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements.
Attorney’s fees provided for by this section shall not be subject to waiver by the parties to any contract or lease which is entered into after September 21, 1977. Any provision in any such contract or lease which provides for a waiver of attorney’s fees is void.
As used in this section `prevailing party’ means the party in whose favor final judgment is rendered.